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Further thoughts on Rahimi

I like the dissent by Justice Thomas (how often, in any field of law, have you seen the author of an opinion (Bruen) wind up in the very next case applying it as the dissenter in an 8-1 decision?). It's quite a stretch to take surety to keep the peace statutes and affray statutes and use them to uphold the law at issue.

Why are framing era statutes relevant, anyway? Because they can be evidence of what the people understood the words "right to keep and bear arms" meant when they ratified the amendment containing them. If there was some restriction then in place, and seemingly accepted, that would be evidence they were OK with it and it was not seen as within the right at issue. If, oh, shooting of matchlocks by left handed men was then generally illegal, that'd be some evidence that that was not protected by the 2A.

OK, how do we get from "the framers were OK with requiring peace bonds from threatening people" to "then they must have been OK with disarming people who are subject to DV restraining orders." One hardly proves, or even suggests the other. The only point of commonality is that both are meant to address violence, but if "the Framers were OK with reducing violence, this might reduce violence, therefore it passed 2A muster," isn't the 2A rendered a nullity? (And, for that matter, on that reasoning wouldn't other constitutional provisions be at risk -- right to a jury trial, to confrontation by one's accusers, etc. Those can address violence, too).

We can take some comfort in the fact that the majority makes clear they are only assessing 922(g)(8)(c)(i) and not (c)(ii). (c)(i) covers a DV restraining order that specifically finds the person restrained presents a credible threat to a family member. (c)(ii) covers any order that restrains a person from committing certain violence. (c)(ii) is the bigger infringement, since it applies without the court finding a credible threat, and courts too often issue restraining orders on the unspoken thought that "what harm can come from forbidding a person to commit a crime?"

That distinction was strongly urged in an amicus brief by David Kopel, followed by a blog post replying to the government's answer to that brief. Kopel's writing probably played a big role in narrowing Rahimi.